[2023] KEHC 25089 (KLR)

Wandera & 4 others v Wandera (Civil Appeal E037 of 2022) [2023] KEHC 25089 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25089 (KLR)

Republic of Kenya

In the High Court at Busia

Civil Appeal E037 of 2022

WM Musyoka, J

November 10, 2023

Between

Ronald Mukoyani Wandera

1st Appellant

Fredrick Mulefu Wandera

2nd Appellant

Caroline Mukola Wandera

3rd Appellant

Arthur O. Magina Wandera

4th Appellant

Albert Okello Wandera

5th Appellant

and

Eunice Wesonga Wandera

Respondent

(Being an appeal from the judgment and decree of Hon. P Olengo, Senior Principal Magistrate, SPM, delivered on 26th October 2022, in Busia CMCCC No. E290 of 2022)

Judgment

1. The suit before the trial court was by the respondent against the appellants, for an injunction order to restrain the appellants from interring the remains of the late Peter Muchere Wandera, hereafter referred to as the deceased, at Chude, Busia County; for the respondent to be recognized as a widow of the deceased; and to be allowed to inter his remains at the ancestral home in Buyofu, Busia County, on Bukhayo/Buyofu/307. The appellants resisted the suit, by way of 2 statements of defence, in which they asserted that the deceased had married their mother, the late Peris Grace Weyala Wandera under statute, and had established a home for her, at Chude, on Bukhayo/Bugengi/1150. They counterclaimed, seeking an order that the remains of the deceased be given to them, for interment at Chude, on Bukhayo/Bugengi/1150. A trial was conducted, at the end of which the court allowed the case by the respondent, and dismissed that by the appellants.

2. The appellants were aggrieved, hence the appeal. The principal grounds of appeal are around the trial declaring the respondent a widow of the deceased, declaring that the deceased was a polygamist, ordering release of the body to the respondent, on the finding that none of the parties had persuaded the court on where the body was to be interred, and on not taking the totality of the evidence into account and arriving at the wrong conclusion. They seek that the decision of 26th October 2022, in Busia CMCCC No. E290 of 2022, be set aside, and substituted with an order dismissing the respondent’s plaint, and allowing the counterclaim by the appellants.

3. Directions were given herein, on 17th July 2023, on the disposal of the appeal, by way of written submissions. Both sides complied, for they have filed written submissions, with detailed caselaw.

4. On their part, the appellants have submitted on only 2 of the grounds of appeal, that is on whether the respondent was a spouse of the deceased, and on where the interment of the body ought to be. On the first issue, the appellants have cited section 109 of the Evidence Act, Cap 80, Laws of Kenya; sections 6, 9 and 96 of the Marriage Act, No. 4 of 2014; SAN v GW [2020] eKLR (Ouko P, Gatembu & Murgor, JJA); MWG vs. EWK [2010] eKLR (Bosire, Tunoi & Nyamu, JJA), Mary Nyambura Kangara v Paul Ogari Mayaka SC Pet. No. 9 of 2021 (Mwilu DCJ&VP, Wanjala, Njoki, Lenaola & Ouko, SSJJ)(unreported); Dakianga Distributors (K) Ltd v Kenya Seed Company Limited [2015] eKLR (Maraga, Azangalala & Kantai, JJA); Galaxy Paints Company Ltd v Falcon Guards Ltd [2000] eKLR (Gicheru, Shah & Bosire, JJA); Philmark Systems Co. Ltd v Andermore Enterprises [2018] eKLR (Cherere, J); and Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR (Mrima, J); to submit that the respondent did not prove, to the required standard, that she was a spouse of the deceased. On the second issue, the appellants have cited Ruth Anyolo v Agnetta Oiyela Muyeshi [2019] eKLR (Omondi, J) and SAN v GW [2020] eKLR (Ouko P, Gatembu & Murgor, JJA), to submit that a polygamous Luhya man ought to be buried at the home of his first wife. On her part, the respondent cites SAN v GW [2020] eKLR (Ouko P, Gatembu & Murgor, JJA) and Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR (Mrima, J), and urges the appellate court to uphold the decision of the trial court. It is argued that the body was interred, and no order for exhumation has been sought in the appeal.

5. The issues for determination should be framed from the pleadings, for parties are bound by the pleadings. 3 issues emerge from the pleadings: whether there was a marriage between the respondent and the deceased; whether the deceased was a polygamist; and where the body should be interred. The issues are just 2 really, for the first and second issues can be merged. There is little wonder, therefore, that the appellants submit on only 2 issues.

6. On the first issue, the respondent testified that the deceased married her in 1983, and that there was a marriage affidavit. She was a second wife, as the deceased had previously married a first wife. She was settled at Nambale; while the first wife was settled at Chude. She stated that her home was the ancestral home of the deceased, and she lived there with her mother-in-law. She buried the mother-in-law and her own son on that land. She had 7 children with the deceased. When he died, it was one of her stepsons who called her to inform her of the same. She was present at the mortuary, when postmortem was done. She further stated that she used her National Hospital Insurance Fund (NHIF) card to settle the medical bills of the deceased. Her witnesses, PW2 and PW3 were paternal cousins of the deceased, while PW4 was a maternal nephew of the deceased, and they identified the respondent as a widow of the deceased.

7. With regard to that first issue, the 2nd appellant testified as DW1. He confirmed that his mother was the first wife of the deceased, married in a church ceremony in 1973. He identified the respondent as his stepmother. He said that “The next day my step-mother Eunice came at midday and told me that the Bamwaya clan was having a meeting at Sikinga.” He went on to say “I objected to wives attending a clan meeting for Bamwaya. The relationship between my stepmother and the deceased was not good.” He added “They refused to listen to the relationship between my father and the stepmother. My stepmother didn’t attend the meeting … Later on they said that they had been send by my mother (stepmother) ... My uncle called Raduli came home and told me he had been sent by our stepmother to come and negotiate … They went to Sikinga to meet our stepmother. My uncle went to stepmother’s home and talked to her. Our priest came to our home and called our stepmother to come to Ochude to decide the issue … My father and stepmother have been living apart …” During cross-examination, he said “I recognized my stepmother as my father’s wife. She is the only other wife of the father. She is the only widow to my father… My father and stepmother have a home in Sikinga … 7 years was disharmony between my father and my stepmother.” The 5th appellant was a brother of the deceased. He testified as DW3. He identified the respondent as a widow of the deceased. He said “He had two wives Peris and Eunice.”

8. From the testimonies of DW1 and DW3, a son and a blood brother of the deceased, it emerged that the appellants did not dispute the matrimony of the deceased to the respondent. They said that he was a widow of the deceased. None of the other appellants testified at the trial, and, so, there was no contrary evidence. That being the case, I do not see why the appellants should be making the marital status of the respondent an issue on appeal. They admitted it themselves in their sworn oral statements before the court. They cannot, in their written submissions, seek to trash what they stated before the court on oath, unless they had no comprehension of what they were stating under oath. Their written submissions are completely inconsistent with their recorded oral evidence on oath. The written submissions are statements or assertions that are not on oath, and they cannot possibly change the evidence that the court received on oath from DW1 and DW3. The appellants are bound by that evidence, and whatever they say in their written submissions, to contradict their own oral narratives in court, is of no value. Indeed, it is a display of lack of appreciation what written submissions stand for. They are supposed to be final arguments by the parties, based on the evidence that they have placed on record. The submissions should be aligned to the facts that the parties have tabled before the court, and, so, they cannot contradict those facts, or create alternative facts, which had not been pleaded, or adduced in court.

9. They appear to hang on the provisions of the Marriage Act, 2014, to do so. Their argument is that the first marriage of the deceased was statutory, and there was no capacity to contract a subsequent marriage. There is ample caselaw on that point. That notwithstanding, the courts have presumed marriage from prolonged cohabitation, the most notorious decision being Hottensiah Wanjiku Yawe vs. Public Trustee [1976] eKLR (Wambuzi P, Mustafa & Musoke, JJA), which has been followed in a legion of decisions thereafter. There was ample evidence of that prolonged cohabitation, and of the other considerations, set out in Njoki v Mutheru [1985] KLR 871 [1985] eKLR (Madan, Kneller & Nyarangi, JJA), from the record. The relationship between the deceased and the respondent produced children, a home was set up, the respondent met medical expenses of the deceased, and the family (including DW1 and DW3) had recognized her as a spouse. The cohabitation, the basis of the alleged second marriage, commenced in 1983, the Marriage Act, 2014, came 30 years thereafter. The appellants have not established that that statute was to be applied retrospectively. The appellants have cited Mary Nyambura Kangara alias Mary Nyambura Paul vs. Paul Ogari Mayaka & another Supreme Court Petition No. 9 of 2021 (Mwilu, DCJ&VP, Wanjala, Njoki, Lenaola & Ouko, SCJJ)(unreported), one of the more recent decisions on the matter, and coming from the apex court. The same did not overrule the earlier decisions, instead it reiterated them. In any case, the appellants, according to my understanding of their oral testimonies, spoke from both sides of their mouths, when they told the court that the respondent was a widow of the deceased, then, in their written submissions argue that she was not a widow, based on the provisions of the Marriage Act, 2014. They cannot, possibly, have it both ways. If they would like the court to go by their written submissions, then it would mean that what they testified to, on oath, in open court, was not truthful.

10. On the second issue, relating to where the body was to be interred, the 2 sides are at variance. The appellants rooted for burial at the home of the first wife, at Chude, and they based themselves on customary law. The respondent rooted for a burial at her home, on grounds that that was the ancestral home for the deceased, and custom dictated that a man be buried at his ancestral home, rather than at a home established at a place acquired through sale. She too based herself on customary law. The trial court was not impressed by either argument. The secondary argument was that the deceased had told both sides that he wished to be buried at home with his first wife, at Chude, and at the ancestral home at Sikinga. Again the trial court dismissed the arguments by both sides as afterthoughts. In the end, the court adopted the approach that what mattered is not where the interment should be, but who should decide on that, and found and held, based on caselaw, that the spouse of the deceased would play a key role in making that decision, being the closest person to the deceased.

11. Was the trial court wrong in doing so? I do not think so. The trial court heard and saw the witnesses, and based on that it was the best suited to evaluate their testimonies, and determine whether the evidence given by them was of value or not. On the place of burial, caselaw, in such decisions as SAN v GW [2020] eKLR (Ouko P, Gatembu & Murgor, JJA), indicates that the issue should not be so much where to inter, but who should inter, for interment is usually at the home or homes of the deceased, unless he had no home. Once the who is identified, he or she would, in collaboration with others, decide on the where. When it boils down to who, the issue would be who was closest to the deceased, in terms of familial set up or hierarchy or tree, and where that is not favourable, in terms of the conduct of the parties with respect to the deceased. As between 2 widows, it would be the first wife, unless she was disqualified for some reason, such as prolonged separation or hostile conduct towards the deceased. As between a widow and children, or between a widow and the children of dead wives, the widow would be deemed as closest, unless she is disqualified for the reasons given above. As between children, whether of the same mother, or different mothers, and where there are no widows, the children would be entitled equally to make that decision, in consultation with other relatives. However, where they are unable to agree, it may have to depend on the child who was closest to the deceased, in terms of caring for him during his final days, with responsibility to bury the deceased being passed to the child who was most responsible for him when he was alive.

12. I guess this is so as, as days go by, it is becoming increasingly difficult to establish what the relevant custom is with respect to these issues. Customs are fluid and dynamic, and it is getting increasingly difficult to get persons who are knowledgeable about them, or who are adept at gauging what the prevailing customs are. Arguments about ancestral land do not impress anymore, for such land no longer exists, after much of the arable land in Kenya was subjected to demarcation, adjudication and registration. It is no longer sustainable, nor sensible, to continue clinging to such notions or concepts, as ancestral land, after tenure to land has been individualized and commoditized. The idea of ancestral land is now outdated, and out of sync with modern trends and demographics.

13. In the end, I agree with the findings and holdings of the trial court. There is, therefore, no merit in the appeal herein, and I hereby dismiss it. Being a family matter, each party shall bear their own costs of the appeal.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 10TH DAY OF NOVEMBER 2023W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AppearancesMr. Mukele, instructed by Mukele Ngacho & Company, Advocates for the appellants.Mr. Ashioya, instructed by Ashioya & Company, Advocates for the respondent.